On September 22, the House Subcommittee on Terrorism, Crime and Homeland Security of the Judiciary Committee held hear­ings on the re-autho­riza­tion of the Inno­cence Protection Act. Among those mak­ing pre­sen­ta­tions were not­ed defense attor­neys Stephen Bright (pic­tured), President of the Southern Center for Human Rights in Atlanta, and Barry Scheck, Co-Director of the Innocence Project in New York. Mr. Bright empha­sized that the best way to pre­vent wrong­ful con­vic­tions is to pro­vide defen­dants with ade­quate rep­re­sen­ta­tion: ​“The best pro­tec­tion against con­vic­tion of the inno­cent is com­pe­tent rep­re­sen­ta­tion for those accused of crimes and a prop­er­ly work­ing adver­sary sys­tem. Unfortunately, a very sub­stan­tial num­ber of juris­dic­tions through­out the coun­try do not have either one.” He not­ed that DNA test­ing is no sub­sti­tute for good lawyers, espe­cial­ly since such evi­dence is not avail­able in most cas­es: ​“Some peo­ple believe that we can rely on DNA test­ing to pro­tect the inno­cent, but DNA test­ing reveals only a few wrong­ful con­vic­tions. In most cas­es, there is no bio­log­i­cal evi­dence that can be test­ed. In those cas­es, we must rely on a prop­er­ly work­ing adver­sary sys­tem to bring out all the facts and help the courts find the truth.”

He also cit­ed the dis­par­i­ties between resources avail­able to the pros­e­cu­tion and that avail­able to the defense:

[T]here is no work­ing adver­sary sys­tem in much of this coun­try,
par­tic­u­lar­ly in the juris­dic­tions that con­demn the most peo­ple to death. The
dis­par­i­ties between the pros­e­cu­tion and the defense are so immense in some places
that the prosecution’s case is not sub­ject to adver­sar­i­al test­ing. Some lawyers
assigned to defend peo­ple accused of crimes are com­plete­ly unqual­i­fied to do so
because they are unaware of the gov­ern­ing law. Some lawyers work under such
crush­ing work­loads that no mat­ter how con­sci­en­tious and ded­i­cat­ed, they are unable
to give their clients the indi­vid­ual atten­tion they require. There is lit­tle or no
inves­ti­ga­tion and pre­sen­ta­tion of evi­dence on behalf of the accused. This
sig­nif­i­cant­ly increas­es the risk of wrongful convictions.

Among the rec­om­men­da­tions offered to the com­mit­tee by Mr. Bright, par­tic­u­lar­ly about cap­i­tal cas­es, were the following:

If we are going to have an adver­sary sys­tem, there must be an inde­pen­dent
defense com­po­nent that has struc­ture and the resources nec­es­sary to pro­vide
com­pe­tent rep­re­sen­ta­tion. Public defend­er offices need to be orga­nized along the
same lines that pros­e­cu­tors offices are orga­nized – with full-time staffs, spe­cial­iza­tion
in com­plex cas­es and appeals, rea­son­able work­loads, and inde­pen­dence so their
loy­al­ty is to their clients not to judges, bureau­crats or some oth­er public official.

In states that con­tin­ue to impose the death penal­ty with fre­quen­cy, there must
be cap­i­tal defend­er pro­grams – pro­grams, like those in Colorado and Connecticut,
staffed by full-time lawyers who spe­cial­ize in cap­i­tal lit­i­ga­tion who employ
expe­ri­enced inves­ti­ga­tors and mit­i­ga­tion spe­cial­ists qual­i­fied to work on cap­i­tal
cas­es. Those states do not have cap­i­tal tri­als that are trav­es­ties of jus­tice. They have
min­i­mized the risk of exe­cut­ing inno­cent peo­ple by pro­vid­ing good rep­re­sen­ta­tion
which helps restrict the impo­si­tion of the death penal­ty to the most aggra­vat­ing cas­es
with the clearest proof.

(Testimony of Stephen Bright, House Subcommittee on Terrorism, Crime and Homeland Security of the Judiciary Committee, hear­ings on the re-autho­riza­tion of the Innocence Protection Act, Sept. 22, 2009). See Representation.

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